Other Takes: What is Justice Anthony Kennedy's legacy? It's complicated

Tuesday

Jul 3, 2018 at 4:46 PM

From the Dallas Morning News:

Perhaps it was inevitable that the scramble over who might fill Justice Anthony Kennedy's seat on the U.S. Supreme Court would start even before he finished making his retirement announcement. But to assess how a new justice might next reshape the court, we believe, it is essential to step back from the passions of the day and consider where Kennedy exerted his influence.

In surveying his legacy, we see several areas of influence worth considering at length.

We'll start with politics. Kennedy was often referred to as a "swing vote" on the court. But he was not a fan of the term, saying, "The cases swing. I don't." What's more, looking at the court through a political prism does a disservice to Kennedy, the other justices and our judicial system. The court can weigh in only on cases that are litigated, and the court is limited to the issues raised by those cases.

What's more, the law merely provides a floor for what is acceptable. There are plenty of policies that pass legal muster but are nonetheless bad public policy. To equate the courts with the political branches of our government is to miss the important role that our courts need to play.

Typically, a justice will be viewed through the lens of his or her judicial philosophy. Here, the jury is still out on Kennedy. Individual liberty and human dignity are key concepts that have guided his decisions. Privacy was another touchstone for him. But the truth is that sometimes his opinions were unclear about what rule they were laying out and why.

That means that anyone who calls for the president to nominate a justice in the mold of Kennedy is putting forth a tall order. His philosophy isn't easy to pin down and therefore will be hard to replicate, which is something that will limit his influence.

Another marker for an influential justice is the landmark decisions he or she wrote or voted with the majority on. Kennedy was in the lead of many such cases during his 30-year tenure on the court. His rulings in Lawrence vs. Texas, Obergefell vs. Hodges, Planned Parenthood vs. Casey and Kennedy vs. Louisiana were critical decisions addressing gay rights, abortion rights and the death penalty — decisions that some fear may be in jeopardy because of Kennedy's departure.

Kennedy also voted with the majority in Whole Woman's Health vs. Hellerstedt, another abortion rights case, and in District of Columbia vs. Heller, in which the Supreme Court accepted that the Second Amendment protected an individual right to own a firearm. Kennedy also figured prominently in Citizens United vs. Federal Election Commission, a free speech case that rebuked Congress for infringing on the First Amendment.

One of the more interesting aspects of Kennedy's career is that his influence extends beyond his votes on the court. Fellow Associate Justice Neil Gorsuch once clerked for Justice Kennedy. The Weekly Standard published a short list of possible candidates to replace Kennedy. Two of the five on that list, Brett Kavanaugh, who sits on the D.C. Circuit Court of Appeals, and Raymond Kethledge, of the 6th Circuit Court of Appeals, both clerked for Kennedy.

His decision to retire now, when Donald Trump has a chance to nominate his replacement before the midterm elections, indicates that Kennedy may be comfortable with the president's selection process. He may even be happy with the previous selection of Gorsuch.

There is a lot of hand-wringing going on across the country right now over how Trump will use this opportunity to change the court. But it's hard to know in advance how a justice will rule, as Kennedy himself proved. And because it's especially hard to predict where the court will go before the president even announces a nominee, our thought is to wait and see whom Trump taps for the highest court of the land.

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.